Stockton & Visalia Railroad v. City of Stockton

By the Court, Niles, J.: This is an application for a mandamus to compel the delivery to the petitioner of certain bonds of the city of Stockton, issued under the act of April 1, 1870 (Stats. 1869-70, p. 551), and placed in the hands of the trustees named in the tenth section of the act. The petitioner claims to have performed the conditions upon which .it was to become entitled to the bonds under the terms of the act. This is denied by the respondents, who resist the application on the ground, first, that the portion of the road lying between the city of Stockton and Peters, 14J miles in length, was not constructed by the petitioner, but by another railroad company, by which it was sold and conveyed to the petitioner. Second, that the road as located and built does not pursue the route prescribed by the act. There are several minor objections, which, however, may be considered under these two general heads.

First. It is clear from the whole act, that the purpose of the subsidy was to aid the railroad company in establishing railroad communication from the water front in Stockton, “through the county of San Joaquin and up the San Joaquin Valley, in the direction of the town of Visalia, county of Tulare.” (Stats. 1869-70, p. 551.) At the passage of the act, no work had been done towards the construction of such a road, and the object of the people of Stockton in voting the subsidy, was to secure railroad communication [335]from their water front, through their county, up the Valley, in the direction of Visalia. It appears, however, from the findings, that the Stockton and Copperopolis Company was incorporated to construct a railroad from the water front in Stockton to the town of Copperopolis in Calaveras County, and that some work was done towards the grading of its road-bed, from Stockton to Peters, as early as the year 1866, when the work was discontinued, and was not resumed until November, 1870. In the meantime, to wit, in April, 1870, a vote was had in pursuance of the statute, which resulted in favor of the subsidy to the Stockton and Visalia Railroad Company. It appears, therefore, that when the subsidy was voted, work on the Stockton and Copperopolis road had been discontinued for four years or more; but in November, 1870, the work was resumed, and the road was completed to Peters in February, 1871. This portion of that road was subsequently purchased by the Stockton and Visalia Railroad Company, and was adopted as a portion of its line in the direction of Visalia, and was continued by the last-named company through the county of San Joaquin, in the direction of Visalia, as the petitioners contend. Assuming, as we have stated, that this road was so located as to bring it in that respect within the provision of the statute, the question is, whether to entitle it to the subsidy, it was incumbent on the Stockton and Visalia Company to construct a new road over its entire route, or wdiether it could purchase a section of another road constructed by another company after the subsidy was voted, and adopt it as a part of its line. On the theory of the respondents, nothing short of the construction by the company of a new road over the entire route from the water front to the county line, would entitle it to the subsidy. If pushed to its logical conclusion, the result of the argument would be, that if another company, after the subsidy was voted, liad constructed a few miles of railroad, or even a single mile, on the most practicable and advantageous route of the proposed road, the Stockton and Visalia Company ivould not be allowed to acquire it and incorporate it into its road, but must necessarily construct an entirely new road, running, it may be,